Benn v Hardinge (1992) 66 P & CR 246; [1992] NPC 129
EASEMENT, RIGHT OF WAY, PRIVATE CARRIAGEWAY, IMPLIED GRANT, ENCLOSURE AWARD, LAYING OUT OF PRIVATE CARRIAGEWAY, NON-USER, ABANDONMENT OF AN EASEMENT
Facts
The plaintiff had owned a farm and the adjoining land for 20 years. The defendants were the owners of a property located to the south of the plaintiff’s land. A track ran along the boundary of the plaintiff’s land. Part of the track ran between two entrances, A and B, to two of the plaintiff’s fields. In 1818, an enclosure award had affected the track and the defendants’ property in that they became private carriageways for various persons, including the proprietors and occupiers for the time being of the land adjacent to the track, including the owners of the plaintiff’s farm. Neither the plaintiff, nor his predecessors in title ever sought to use entrance B or the track leading to it from A for any purpose since they had alternative access. However, parts of the plaintiff’s land became waterlogged and he now wished to use entrance B and the track. The High Court dismissed his claim on grounds that there had been no grant of a right of access to the owners of the farm. The plaintiff appealed to the Court of Appeal.
Issues
(1) In what circumstances does the laying out of a private carriageway in accordance with an enclosure award create an implied grant of a private right of way over it?
(2) Did the non-user of the private carriageway due to the lack of occasion to use it create a presumption that it was abandoned?
Decision/Outcome
The appeal was allowed.
(1) The laying out of a private carriageway in accordance with an enclosure award almost inevitably creates an implied grant of a private right of way over it where there is no other purpose in laying out the way for the benefit of the owners of the adjacent property than they should have a right of way over it.
(2) The fact that the footpath was not used as no one had occasion to use it did not create a presumption that it was abandoned.
Updated 21 March 2026
This case summary accurately reflects the decision in Benn v Hardinge (1992) 66 P &CR 246. The two legal principles stated — that laying out a private carriageway pursuant to an enclosure award will almost inevitably create an implied grant of a right of way, and that mere non-use without evidence of intention to abandon does not give rise to a presumption of abandonment — remain good law.
The principle on abandonment has been consistently affirmed in subsequent case law. In particular, CDC2020 plc v Ferreira [2005] EWCA Civ 611 and Dwyer v Westminster City Council [2014] EWHC 3183 (Ch) reinforced that abandonment of an easement requires a clear intention to abandon permanently, and that long non-use alone is insufficient. The high threshold for abandonment articulated in Benn v Hardinge thus continues to represent the law accurately. No subsequent statutory changes have materially affected the principles discussed. The article is suitable for students as a reliable summary of this area of easements law.
